The Title IX Comments Are In. Here Are 3 Things to Know.
These days, everyone seems to have something to say about Title IX.
The Education Department received more than 240,000 comments in the past two months on its proposed regulatory changes to the federal gender-equity law, which governs how colleges respond to complaints about sexual harassment and other forms of sex discrimination.
The department’s 60-day comment period closed this week with almost twice as many comments as the Department of Education received when the previous administration proposed its Title IX regulations in 2018. While Title IX used to be a niche issue limited to the educational sphere, it’s recently become a rallying cry for people to express their opinions about transgender inclusion, free speech, and gender theory.
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These days, everyone seems to have something to say about Title IX.
The Education Department received more than 240,000 comments on its proposed regulatory changes to the federal gender-equity law, which governs how colleges respond to complaints about sexual harassment and other forms of sex discrimination.
The 60-day comment period closed this week with almost twice as many comments as the Trump administration’s proposed Title IX regulations drew in 2018. While Title IX used to be a niche education issue, it’s recently become a rallying cry for people to express their opinions about transgender inclusion, free speech, and gender theory.
The Biden administration’s proposed rule would broaden the definition of sexual harassment, which was narrowed under the Trump administration’s interpretation. It would also codify rights for LGBTQ students by including protections for sexual orientation and gender identity, as well as “sex stereotypes, sex characteristics, [and] pregnancy or related conditions.”
The proposal would ax the Trump-era requirement for live hearings and cross-examinations — which victim advocates have criticized for retraumatizing survivors in adversarial court-like processes and deterring some from reporting at all. Colleges would once again be able to use the single-investigator model, in which one administrator examines the allegations and decides whether the accused person should be punished. The approach has drawn pushback from due-process advocates.
The changes would also mark a return to Obama-era mandatory reporting policies by requiring most faculty members and campus employees — as the proposal puts it, anyone with “teaching” or “advising” responsibilities — to report any possible sex discrimination to the Title IX office right away. They would also require colleges to confront off-campus conduct that “creates or contributes to a hostile environment.”
Here are three key takeaways from The Chronicle’s deep dive into the comments section.
Even organizations that have nothing to do with education are weighing in.
Many of the comments came from grass-roots organizing by conservative groups that oppose the inclusion of gender identity in the Biden administration’s interpretation of Title IX protections — a change that transgender-rights experts say will help make campuses more inclusive. Organizations like the Family Policy Alliance and Concerned Women for America have encouraged their supporters to voice their opposition to these proposed changes.
A comment-writing guide from Concerned Women for America claimed that “women and girls would be stripped of vital protections under the law based on their female status that have been guaranteed under Title IX until now.”
The Family Policy Alliance encouraged its supporters to “Tell the Department of Education how redefining sex in Title IX defeats the purpose of providing opportunities for women.”
The comment section is flooded with echoes of this sentiment — including assertions that the Title IX changes would lead to cisgender women losing gender-specific scholarships to transgender women or otherwise endanger cisgender women.
According to a search of the Federal Register’s posted comments, versions of the following paragraph have appeared roughly 12,000 times: “For fifty years, Title IX has provided important protections and opportunities for women by prohibiting discrimination on the basis of sex. While parents across the country are demanding the rejection of ‘woke’ policies, the Department of Education instead has chosen to hijack Title IX to force gender ideology on children without their parents’ knowledge or approval. This proposed rule is a lawless interpretation and is a complete overreach by the Department of Education,” many commenters wrote.
Many of those comments also describe opposition to the participation of transgender students in sports, an issue that conservative activists have underscored ahead of the November midterm elections. But Biden’s Title IX changes put off addressing this question; the administration has said that the issue will be considered in a separate rule-making process.
Higher-education groups say mandatory reporting requirements harm survivors and student-faculty relationships.
In recent years, professors and others have expressed concerns about mandatory-reporting requirements, which direct nearly all campus employees to report to the Title IX office any sexual misconduct they learn about. The policies are designed to ensure that colleges don’t drop the ball on allegations, but critics say the approach can hurt victims who don’t want to report to their institutions.
Two-dozen comments were submitted using a template from the Academic Alliance for Survivor Choice in Reporting Policies, an organization that says it advocates for institutional reporting policies that give students and others more autonomy in coming forward about sexual misconduct. Many of those comments were submitted by faculty members and survivors of sexual assault.
“These requirements directly contradict research on such policies and trauma-informed responses and will be more harmful for victims/survivors than the Trump administration regulations they are replacing,” the comments stated.
The American Association of University Professors recommended that the Education Department prohibit mandatory reporting. “Such overly broad policies have a negative impact on teaching and advising relationships by compelling faculty members to violate students’ and colleagues’ confidentiality,” the group wrote in a statement. The AAUP instead advocates for modeling the University of Oregon’s reporting system, where only certain administrators and faculty members have to abide by reporting requirements — and it’s clear to students who those mandatory reporters are.
Meanwhile, the American Council on Education said in its public comment that it supports efforts to encourage reporting of sexual misconduct. But in a statement, ACE urged the Education Department “to provide better clarity and help ensure that students, particularly survivors of sex-based harassment, can determine in advance whether confiding in a particular employee will trigger a notification to their institution.” The group also wanted employees who conduct sex-discrimination research on campus to be exempt from the mandatory-reporting requirements.
Some worry the changes would roll back free-speech protections.
That was the argument made by the Foundation for Individual Rights and Expression, known as FIRE, which issued an 89-page comment.
Biden’s new definition of sexual harassment is broader, according to FIRE, and so is the jurisdiction of the Education Department, which would now scrutinize colleges’ handling of sexual harassment that happens off campus. Hundreds of commenters voiced similar concerns.
The AAUP also outlined concerns about protecting free speech, pointing out that faculty members who teach in gender studies and related fields are likely to be disproportionately affected by Title IX complaints. The group wrote in its statement that “such topics may be offensive or uncomfortable to some students.”
The group recommended that a caveat be added to the rule that an institution “must formulate, interpret, and apply its rules so as to protect academic freedom, free speech, and due process.”